CA Trust, Estate & Probate Litigation

CA Trust, Estate & Probate Litigation

Top 14 for 2014: Our Top Blog Posts of the Year!

Posted in Uncategorized

Another year almost down means it’s time to reflect on what took place this year before looking forward to a happy and hopefully prosperous 2015 (that sounds weird).  Here is our pick of top 14 posts for 2014 based on the amount of feedback we received from each post.  Thank you all for reading our posts and we wish each of you an happy, health and prosperous 2015!

1.  California Trust Amendment vs. Trust Revocation–What’s the difference?  There are different ways in which you can amend a Trust versus revoking a Trust in California.  It pays to know the differnce between the two.

2.  A Better Standard for Undue Influence in California Trust and Will Cases.  This is a four part series detailing the newly enacted rule for proving Undue Influence in court.  The four parts include (1) vulnerability, (2) apparent authority, (3) actions and tactics, and (4) equity.

3.  Mickey Rooney’s Estate — Separate fact from fiction.  Whenever a big name celebrity dies there is always speculation about his or her estate.  The first news we hear is what their Will says.  Since all original Wills are required to be filed with the court, they become public documents after death.  But the Will only tells a portion of the story, and sometimes it is a very small portion.  Since so many assets pass now by Trust, joint tenancy, beneficiary designation and the like, the Will may have nothing to do with the overall value of a person’s estate.  But the speculation continues…

4.  When Planning Fails: Casey Kasem’s Lessons for California Trust and Wills.  Here’s another celebrity story in the news, this one describing an all to familiar scenario: new spouse vs. old kids.  Anytime a new spouse is in the picture, the time is ripe for a disagreement.  And when an elder loses the ability to manage themselves, the fight heats up over who controls the elder.  This tragic story was played out on a public stage in the case of Mr. Kasum.

5.  Abused Trust Beneficiaries in California Trusts and Wills.  Every year we hear from hundreds of abused Trust and Will beneficiaries.  The need to hold fiduciaries accountable and insist that they follow their fiduciary duties is growing year by year.  But first, you have to know if you are being abused.

6.  Broken Promises: Are Oral Promises to Make a California Trust or Will Enforceable?  Spoiler alert: the answer is a definite yes.  But you have to act fast if you want to enforce that promise because the statute of limitations runs within a year of a decedent’s death.  The clock is ticking, time to understand, and assert, your rights.

7.  Casey Kasem’s Missing Body…Who has the right to control your body after death?  Unfortunately, the saga of Mr. Kasem continued after his death as the new spouse and kids fight over the disposition of Mr. Kasem’s remains.  It is an ugly case faced by many people every year.  It pays to know who has control of your body after you’re gone.

8.  Money, Family, Love, and Wills: Where does it all end for Anna Nicole Smith’s estate?  You think your legal case has lasted too long, try going 19 years in litigation.  This year another part of the Anna Nicole Smith case came to an end, but not the entire case.  Even though all of the principal parties are dead, the case lives on.

9.  How to Use a Financial Elder Abuse Claim in Your California Trust or Will Contest.  The law of Financial Elder Abuse took a big leap forward in Trust and Will actions with the unification of Undue Influence.  The same definition for undue influence now applies to both Trust and Will actions and Financial Elder Abuse claims.  That means in a majority of cases you can now bring both claims in one lawsuit.

10.  Trustee Surcharges: Holding Trustee’s Liable for Bad Acts.  When a Trustee breaches his duty of Trust, he can be held personally liable for the damage caused.  This is referring to as a Trustee surcharge.  In this video we hear Stewart Albertson discuss some of the interesting points of a Trustee surcharge.

11.  From A to Zeal: What it takes to win your California Trust or Will lawsuit.  I must admit this is my personal favorite.  The idea of handling a client’s case with energy and enthusiasm is what gets us up out of bed every morning.  And it just happens to increase the chances for success.  It works for everyone.

12.  How Long Will it Last? A California Trust or Will contest can take some time….  Welcome to our court system.  What used to be a slow system got even slower with the recent budget crunch, which took over $500 million (yes, that’s half a billion dollars) out of the court system.  Why does it take so long?  A little constitutional requirement of undue influence.

13.  Whatever Happened to “You Broke It, You Buy It?”  Why California Trust law won’t give you no satisfaction….  While a Trustee might be liable for any money damages caused to a Trust, there is no concept to reimburse you for your emotional damage, pain and suffering, or any other type of related damage.  Might be surprising, but better to know beforehand what damages you can get.

14.  Can You Ex-Spouse Inherit Your Property in California?  Maybe.  Sounds disturbing to know your ex may be able to inherit your property?  You should know the law, and then plan accordingly.  Especially when it comes to life insurance: CHANGE YOUR BENEFICIARY DESIGNATIONS!  It takes so little time to plan properly, yet it makes a world of difference if done properly.

There you have it our top 14 blog post for 2014.  Hope you enjoy them and all of our posts.  We look forward to bringing you more usefully and interests Trust and Will litigation information next year.

Happy New Year!!

Time to Account: How do you get a California Trust accounting? And what should it look like?

Posted in Trustees & Beneficiaries, Videos

Trustees are required to account for their actions, and yet it can be difficult to obtain a proper Trust accounting when one is desired.   Even if you do get a Trust accounting, what should it look like and how do you know you got a proper Trust accounting?  In this video, Keith Davidson describes how to get an accounting and what it should look like.

From A to Zeal: What it takes to win your California Trust or Will lawsuit

Posted in Litigation

By: Keith Davidson

Lawyers are duty-bound to provide “zealous” advocacy for their clients.  The term “zealous” means to show zeal, and zeal means “great energy or enthusiasm in pursuit of a cause or an objective.”  I really like that definition because it captures the heart of what it takes to be a good lawyer—energy and enthusiasm.  And why not invest energy and enthusiasm into every client’s case, it makes the practice of law more interesting, meaningful and fulfilling.  Not to mention it coincides with what most clients want from their lawyer: to kick ass (putting it bluntly).

So why do so many lawyers lack zeal?  Well the cost of being zealous is putting yourself on the line.  To be a zealous advocate means having to test yourself time and again, on every case for every client, and then holding yourself accountable for every case and for every client.  In other words, it takes hard work and a good deal of courage to step into the middle of someone else’s problem and take it on as your own (especially with energy and enthusiasm).

The biggest fear lawyers face: losing.  That is not unique to lawyers, by the way.  We all fear losing.  Our American individual bravado praises the winner.  And when you win, you have done everything right—no one can question your abilities.  When you lose, however, you did something very wrong and then everyone questions your abilities.

Of course, winning or losing is of outside our control in the court system.  I have seen good cases lose and bad cases win and everything in between.  In a nutshell, our court system is a bit of a crap shoot.  There is so much out of your control heading into a lawsuit.  You cannot control what the opposing side does, the testimony of witnesses or documents (or the lack thereof), the ruling of judges, the decisions of juries, etc.  There is only one thing in your control: being zealous.  The energy and enthusiasm you put into a case can reap rewards down the road.

Don’t get me wrong, even zealous advocates can lose.  But zealous advocacy increases substantially the chances of either a generous settlement or a victorious trial.  Of course, zealous advocacy comes at a cost.  It takes time to invest energy and enthusiasm into any case, and time is money.  So you can’t, on the one hand, demand a thorough and zealous advocate, and then on the other hand complain about the cost.  The price of fighting for justice and fairness is risking injustice and unfairness.  Nothings guaranteed in this world.

But even without guarantees, it never ceases to amaze me where a good amount of energy and enthusiasm will take you.  So put everything you have into your legal matter, if you really care to prevail.  It is your best chance at achieving a just result.

 

What’s the Deal with Your California Trustee?

Posted in Trust Administration, Trustee Breach of Trust, Trustee Removal, Videos

It can be confusing, and a little worrisome, to be kept in the dark by your Trustee.  Time to find out what’s going on.  In this video, Keith Davidson discusses how to find out what your Trustee is up to.

For our email subscribers, please click on the title link to watch this video on our blog.

How Long Will it Last? A California Trust and Will Contest Can Take Some Time…

Posted in Litigation, Videos

If you are not familiar with the Court system in California, you may be surprised how long a case can last in our Court system.  In this video, Stewart R. Albertson describes the length of time your lawsuit can take in Court in regards to a California trust and will contest.

For our email subscribers, please click on the title link to watch this video on our blog.

Whatever Happened to “You Broke It, You Buy It”? Why California Trust law won’t give you no satisfaction…

Posted in Trustees & Beneficiaries

It can be frustrating dealing with a bad trustee.  You may lose sleep, feel extreme pressure and stress, and have to pay a price financially to fight for your rights as a beneficiary.  And if a Trustee mismanages Trust assets, fails to follow the Trust terms, or engages in conflicts of interests by purchasing Trust assets at below-market value, you may find yourself out a substantial amount of money.

Given all you may be going through, can you hold your Trustee liable, and force him to pay damages, for all the “pain and suffering” you are experiencing?  The answer may surprise you…okay the answer is “no”, are you surprised?  Well you should be because it is a bit surprising to think a Trustee can run rampant with your Trust, and then not be held to the same standard of damages as befalls a typical defendant in personal injury case—such as a fender bender.

In fact, the Trustee’s liability is mainly focused at making the Trust whole—putting the assets back, with interest.  In other words, repair the damage to the Trust assets, but ignore any effect those actions had on the beneficiaries personally.

California Probate Code Section 16420 sets out the remedies for a breach of trust, which include things like:

  • Compel a Trustee to perform his duties
  • Enjoin a Trustee from committing a breach
  • Compel a Trustee to redress a beach of trust by payment of money or otherwise
  • To appint a receiver or temporary trustee to manage the trust
  • Remove the trustee

And Section 16440 of the Probate Code provides the measure of liability, which means the amount of damages to be imposed, such as:

  • Any loss of depreciation in value of the trust estate resulting from the breach of trust, with interest
  • Any profit made by the trustee through the breach of trust, with interest
  • Any profit that would have accrued to the trust estate if the loss of profit is the result of the breach of trust.

What do each of the above measure of damages have in common?  They focus on the Trust assets and making them whole, no mention of the beneficiaries anywhere to be found.

Now here’s the scary part, Section 16440(b) says that the Court has the discretion to let the Trustee off the hook with no damages at all if the Court determines that it would be fair to do so and “the Trustee has acted reasonably and in good faith under the circumstances as known to the trustee….”  Wait, what???  So what is “reasonable and in good faith under the circumstances?”  That all depends, of course, on the facts, the trust terms, the assets, and (most importantly) the judge assigned to your case.

In my experience, most Court’s are not going to let a Trustee off the hook where he or she has caused damage to Trust assets.  But Section 16440(b) provides a big loop hole that the Court can apply if you do not frame your case correctly.

More than that, you can forget your “pain and suffering” damages.  The same is true if a Trustee threatens to breach the trust terms, but never actually does so.  There is no breach of trust in that case, so there can be no damages as against the Trustee, even though the threat of breach may cause severe stress.

When it comes to Trusts, the law looks at the Trust assets to determine what must be paid back by the Trustee if there is a breach of trust.  The law has no concern, and gives no remedy, to the individual beneficiaries.  In other words, the law will make the Trust whole, but won’t make you whole—your pain and suffering is on your dime.

Not fair, I would say, but there you have it.  A big dose of tough love, brought to you by the California Probate Code.

Related:

http://www.aldavlaw.com/practice-areas/litigation/estate-and-probate-litigation/

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